Von Duprin LLC v. Moran Elec. Serv.

FINDINGS OF FACT AND CONCLUSIONS OF LAW FOLLOWING BENCH TRIAL

A bench trial on this Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA") litigation was held beginning on July 22, 2019 and concluding on August 1, 2019. This CERCLA action brought by Von Duprin, LLC ("Von Duprin") against Defendants Moran Electric Service, Inc. ("Moran"), and Major Holdings, LLC ("Major Holdings"), and Major Tool and Machine, Inc. ("Major Tool") (collectively, "the Major Defendants"), seeks to allocate the responsibility for the pollution that created a toxic groundwater plume under an area in Northeast Indianapolis, Indiana and to determine the parties' respective financial responsibility for cleanup of the polluted area. On February 11, 2019, the Court granted partial summary judgment and determined Moran and Major Defendants are liable only for the proportion of the harm they caused; and the Major Defendants are not liable for any contamination emanating from the Zimmer Packaging Facility of the Moran Property. (Filing No. 203 at 37.) Upon consideration of the evidence presented during the bench trial¹, the Court now issues its Findings of Fact and Conclusions of Law pursuant to Federal Rule of Civil Procedure 52(a)(1). Any finding of fact that is more properly considered a conclusion of law is adopted as such. Similarly, any conclusion of law that is more properly considered a finding of fact is adopted as such.

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The pollution necessitating this litigation emanated from four properties: (1) the Von Duprin Property, (2) the Moran Property, (3) the Ertel Property, and (4) the Zimmer Paper Property.² Von Duprin seeks to recover costs already incurred to investigate the releases of chlorinated solvents in the plume area and to mitigate the vapor intrusion risks at buildings and residences near that area, as well as future costs. The Major Defendants and Moran each filed counterclaims and crossclaims regarding each parties' cleanup responsibilities. The Major Defendants assert that they are not obligated to pay the costs Von Duprin has incurred or will incur relating to the commingled plume. Moran asserts that it is a liable party as the owner of the Moran Property at the time a release incurred, and the harm in this lawsuit is divisible and ideal for apportionment.

A. The Von Duprin Property

The Von Duprin Property is located at 1929 Columbia Avenue, Indianapolis, Indiana. Between 1965 and 1986, Von Duprin's predecessor—Von Duprin, Inc.—owned the Von Duprin Property and manufactured security hardware and safety products there. (Filing No. 205 at 6.) That manufacturing involved the use of the chlorinated solvents trichloroethylene ("TCE") and perchloroethylene ("PCE"), the two toxic chemicals at issue in this case.³ During the 1970's, the Von Duprin Property housed a large Detrex degreaser that used hundreds of gallons of TCE. (Filing No. 250 at 198-211; Tr. Ex's. 1105 & 1106.) Prior to Von Duprin's ownership, other

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parties, including Atlas Engine Company in the 1910s and Paramount Hardware from 1937-1961, and several dry cleaners operated on or near the Von Duprin Property. Von Duprin's operations resulted in the release of hazardous chemicals, including TCE and PCE, into the soil and groundwater on and around the Von Duprin Property. (Filing No. 205 at 7.)

In 1986, Von Duprin ceased operations, and its owner at that time, Ingersoll-Rand Company, sold the Von Duprin Property to Threaded Rod Company, Inc. ("Threaded Rod") in 1987. Threaded Rod manufactured anchor bolts and connecting rods and did not generate hazardous waste.

In March 2009, the Indiana Department of Environmental Management ("IDEM") determined that soil and groundwater on the Von Duprin Property had been contaminated by chlorinated solvents. In August 2013, IDEM notified Von Duprin that it was a potentially responsible party for contamination of the Von Duprin Property. Threaded Rod brought a lawsuit against Von Duprin (and others) to recover damages relating to the environmental contamination on the Von Duprin Property, alleging that Von Duprin had caused or contributed to the soil and groundwater contamination at the property. Von Duprin settled the litigation with Threaded Rod, agreeing to pay $1.5 million and to undertake certain remedial actions on the Von Duprin Property. (Filing No. 248 at 53, 94, 239-40.)

Von Duprin has undertaken remedial actions both on its own property and at downgradient properties including residences. After it was identified as a potentially responsible party by IDEM in August 2013, Von Duprin began investigating potential vapor intrusion at downgradient properties. In early 2014 Von Duprin entered Indiana's State Cleanup Program and in 2016 transitioned to the Voluntary Remediation Program, an EPA approved remediation program aimed at cleaning up contaminated properties. Von Duprin contacted individual homeowners whose

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property was located within the plume area had TCE concentrations above IDEM's site-specific screening levels. Von Duprin also requested that IDEM become involved. (Filing No. 249 at 141.) Von Duprin sent letters, made telephone calls, had face to face conversations and conducted indoor air sampling at residences in the area of contaminated groundwater plume and installed vapor intrusion mitigation systems at homes that were impacted by vapor intrusion. (Filing No. 249 at 91-92, 145-47.) The residential investigations and mitigation work continue today. When the potential for vapor intrusion was identified at the J.T.V. Hill Park facility, Von Duprin conducted investigation activities and interim measures to prevent public exposure to harmful TCE vapors in that building, and ultimately installed a sub-slab depressurization system to address vapor intrusion. (Tr. Ex's. 1022, 1026, 1029, 1085, 1087, 1089.) IDEM was closely involved and provided supervision of Von Duprin's activities. In 2019, Von Duprin excavated 212 tons of soil from the Von Duprin Property. (Filing No. 248 at 103.)

Von Duprin also performed a successful bench scale and pilot test of in situ biological reduction, which could accelerate the natural degradation process in order to eliminate chlorinated solvents in the groundwater. (Filing No. 249 at 229-236) (Tr. Ex. 1072; Tr. Ex. 1071). Samples from known affected areas at the former Von Duprin property; specifically, the soils and the groundwater, were collected and sent to a laboratory where some were held aside as control samples and others are inoculated with bacterial cultures in order to understand if this technology will indeed accelerate the natural degradation processes. Von Duprin injected a bacterial culture, along with some media that it uses to accelerate its growth to allow it to degrade a greater area of the chlorinated solvents and the injected area saw enhanced degradation of these chlorinated solvents. At the time of trial, a bench scale and pilot test study report had not yet been submitted

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to IDEM, but the observations were shared with Moran and Major Tool Defendants as well as IDEM. Id. at 234-235.

Although substantial work has been performed, additional investigation and mitigation work in the plume area remains to be done because the source of the vapor intrusion—the TCE contaminated shallow groundwater beneath the homes and J.T.V. Hill Park—has not been eliminated. IDEM will require future groundwater remediation, and the responsible parties identified by IDEM are parties to this litigation. (See Filing No. 248 at 251-253.)

B. The Moran Property

The Moran Property refers to the property addressed as 1931 Dr. Andrew J. Brown Avenue and sometimes referenced in documentation as 1401 East 20th Street in Indianapolis. From at least 1946 to 1996, Moran owned and conducted business operations at the Moran Property. It operated multiple shops, including a dynamometer shop, motor shop, compressor shop, and wiring department. Moran's primary business was the rebuilding and repair of heavy-duty electrical motors.

During its operation at the Moran Property, Moran used degreasers and cleaning agents that contained TCE. (Filing No. 250 at 154.) There were multiple pits, parts washers, and tanks located on the properties owned by Moran, and Moran used degreasers and cleaning agents - including TCE - in its business operations. Moran used somewhere between 55 and 150 gallons of TCE in its degreasing operations. Id. at 156; Tr. Ex. 723 at 45-46. Problems arose during Moran's degreasing operations, and employees committed violations when degreasing. (Tr. Ex. 722 at 12; Tr. Ex. 723 at 60-62, 117-118.) Some violations related to the washing of the parts above the vapor line of the degreaser, while others related to the carless handling of TCE that led to TCE splashing out of the degreaser. Moran ceased operations at the Moran Property in 1998.

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Major Holdings acquired the Moran Property on October 4, 2005 and is the current owner of the property. In December 2004, before it acquired the Moran Property, Major Holdings retained EnviroForensics & PolicyFind to conduct a Phase II Environmental Site Assessment...